March 6, 2018
from Greenville County Robin B. Stilwell, Circuit Court Judge
Appellate Defender LaNelle Cantey DuRant, of Columbia, for
Matthew C. Buchanan, South Carolina Department of Probation,
Parole and Pardon Services, of Columbia, for Respondent.
Wilkins Ross pled guilty in 1979 to lewd act upon a child.
Thirty-two years later, he was convicted in magistrate's
court of misdemeanor failure to register as a sex offender.
Ross argues the automatic imposition of lifetime electronic
monitoring required by subsection 23-3-540(E) of the South
Carolina Code (Supp. 2017) as a result of his failure to
register is an unreasonable search under the Fourth
Amendment. Addressing only this particular subsection of
23-3-540, we agree. We reverse the circuit court's order
automatically imposing electronic monitoring, and remand for
an individualized inquiry into whether the imposition of
monitoring in Ross's circumstances is reasonable under
the Fourth Amendment.
Facts and Procedural History
Ross pled guilty to lewd act upon a child in 1979, the trial
court-the late Honorable Frank Eppes-sentenced Ross to six
years in prison, but suspended all of the active prison time
upon Ross's successful service of five years of
probation. Less than two years later, Judge Eppes revoked
Ross's probation for being convicted of alcohol-related
offenses in municipal court. His conviction for lewd
act-which is now reclassified as criminal sexual conduct
(CSC) with a minor in the third degree-is the only
sexual offense of which Ross has been convicted.
1994, our General Assembly enacted the Sex Offender Registry
Act. See S.C. Code Ann. §§ 23-3-400 to
-555 (2007 & Supp. 2017). Subsection 23-3-430(A) (2007)
provides, "Any person, regardless of age, residing in
the State of South Carolina who in this State . . . pled
guilty . . . to an offense described below, . . . shall be
required to register" as a sex offender. Subsection
23-3-430(C)(6) includes "criminal sexual conduct with
minors, third degree" as an offense requiring
registration. "A person required to register pursuant to
this article is required to register biannually for
life." § 23-3-460(A) (Supp. 2017).
was convicted in 2011 in magistrate court for failing to
register. See § 23-3-470(A) (Supp. 2017)
("If an offender fails to register . . ., he must be
punished as provided in subsection (B)."); §
23-3-470(B)(1) ("A person convicted for a first offense
is guilty of a misdemeanor . . . ."). The details of
Ross's failure to comply with subsection 23-3-470(A) are
not in the record.
subsection 23-3-540(E), the automatic, mandatory consequence
of Ross's failure to register is lifetime electronic
monitoring. In particular, subsection 23-3-540(E) provides,
A person who is required to register pursuant to this article
for committing . . . criminal sexual conduct with a minor in
the third degree, . . . and who violates a provision of this
article, must be ordered by the court to be monitored by the
Department of Probation, Parole and Pardon Services with an
active electronic monitoring device.
enforce this requirement, the Department brought an action in
circuit court seeking an order to place Ross on electronic
monitoring. At the hearing before the circuit court, Ross
argued automatic, mandatory electronic monitoring pursuant to
subsection 23-3-540(E) is an unconstitutional search under
the Fourth Amendment. Ross argued the "must be
ordered" language in subsection 23-3-540(E) prohibits
the court from considering his unique circumstances, which in
turn renders the required electronic monitoring unreasonable.
See Samson v. California, 547 U.S. 843, 848, 126
S.Ct. 2193, 2197, 165 L.Ed.2d 250, 256 (2006) (stating the
Fourth Amendment requires courts to "'examin[e] the
totality of the circumstances' to determine whether a
search is reasonable" (alteration in original) (quoting
United States v. Knights, 534 U.S. 112, 118, 122
S.Ct. 587, 591, 151 L.Ed.2d 497, 505 (2001))). To support his
argument, Ross presented expert testimony from Dr. William
Burke, whom the circuit court qualified as an expert in
"psychosexual evaluation and treatment." Dr. Burke
testified he evaluated Ross and determined he is in the
"lowest category of risk" of reoffending.
circuit court disagreed with Ross and found that an order
placing Ross on electronic monitoring was automatic and
mandatory under subsection 23-3-540(E). Ross appealed to the
court of appeals. We certified the case for our review